Law

When it comes to issues of racism and police brutality, Canadians suffer from a bad case of denial. We think these are the problems of people in the United States despite evidence of cops brutalizing Indigenous Canadians and spraying peaceful protesters in the face with pepper spray. It is particularly clear when attacks by authorities come completely unprovoked and the perpetrators scramble to protect their own while the victim is left permanently damaged.

No case demonstrates this so clearly as that of Majiza Philip.

“I was charging them with excessive force and misconduct,” Majiza said of her latest court battle with the Montreal Police (SPVM), a case she is now demanding be reopened. This followed a judge throwing out charges of assault, resisting arrest, and obstruction of justice levied against Majiza by the police in 2014.

Majiza Philip was not looking for trouble. She had been warned by family members in the past to comply with the police who have a habit of thinking the worst of people of colour.

What happened to her was not only a display of police brutality, but of gross injustice. It demonstrates the need for an Ethics Commissioner truly independent from our province’s police forces and the abolition of laws that protect the authorities when they deliberately hurt those they have sworn to protect.

This article will tell Majiza’s story and point out all the mistakes made by those who abused their authority to hurt her. This is her version of events. Since the burden of proof in criminal cases is so high and her account was the one deemed credible by the courts, there is no reason to doubt her story.

One night in November 2014 Majiza and her friend were at a rap concert. Security was high that night due to the rapper’s reputation for drugs and violence.

After the concert her friend was forced to wait outside while she got their coats. He was soon arrested and put in a police car.

Majiza went to check on him and was informed by authorities that he’d been arrested for loitering and public drunkenness. She asked which station they would bring him to and then lightly tapped on the window of the back seat of the police car to get her friend’s attention and see if he was ok.

Suddenly, she felt a push from behind. It was a large white male officer who accused her of assaulting another officer. Majiza backed away in fear and self-defense, rightfully stating that the officer had no right to touch her.

She pleaded with onlookers for help as undeterred, the officer slammed her down on the hood of a police car. With the help of other cops, he began wrenching her arms behind her back. At one point she felt pressure followed by her left arm going limp.

Majiza was shoved into a police car and was only spared the pain of her broken arm in the short time that followed due to the adrenaline from trying to protect herself. She pleaded with the police for help as the pain kicked in and her hands numbed, but they were dismissive.

“They laughed at me a couple of times,” she recalled, noting that they were more interested in discussing their dinner plans.

“It’s REALLY hurting,” she remembers telling the officers, “and they were like ‘Oh, whatever.’ I kept telling them there was pain.”

At this point Majiza didn’t know her arm was broken. All she wanted was the cuffs off so when it finally occurred to the police to ask if she wanted medical attention, she refused.

Prosecutors would later try and use this refusal against her at trial when any medical professional would testify that you have at least fifteen minutes before the pain and extent of your injuries finally kicks in.

It eventually occurred to the police to call an ambulance where EMTs confirmed Majiza’s arm was broken. Before she was lifted into the ambulance, the police attempted to have her sign a notice to appear at her hearing but high on pain and concerned that the document was actually a waiver exonerating those who arrested her, she refused to sign it.

“I’m not signing anything,” she told the police at the time, “I don’t know why I’m here. You never told me I was under arrest.”

She told them to send it to her by mail, and though she was legally entitled to it, she never received anything.

After a disastrous attempt to get care at Saint Luc Hospital – they denied her care because her pain interfered with her ability to speak to medical professionals in French – she was given a sling and a painkiller and sent home. She went to Saint Mary’s hospital in the morning where doctors immediately put her in a cast and booked her for surgery in the following weeks.

She now has a massive scar and pins holding her arm together, the pain returning when the weather is damp. It took over three months before she could go back to work.

Majiza has no criminal record.

In addition to managing a small café in Montreal, she teaches tap-dancing to children and works in her community. The latter jobs require police checks, which she clears every time.

The night she was arrested the only reason the cops had to believe she was a danger was the colour of her skin and the fact that she was at a rap concert. Though the arresting officers made no racial slurs, Majiza points out that though her friend was also arrested that night, he – a white male – was treated far less roughly by police and with a great deal more courtesy than she was. She believes the police have a racism problem as many of them come from places in rural Quebec where attitudes towards ethnic diversity are less than enlightened.

“I just spoke up for him,” Majiza said referring to her friend, “I didn’t assault anybody, didn’t do anything and I got my arm broken and I got hit with a bunch of charges. I can’t say it was racially motivated but I do feel like they treated me differently because I was black.”

When she was able, Majiza Philip contacted the Center for Research- Action on Race Relations (CRARR), a non-profit that works towards diversity and racial equality in Montreal. They helped her file a report with the police Ethics Commissioner who allegedly took her complaint seriously and filed a year-long investigation. Unfortunately, as per the current Loi sur la Police, officers are not legally obligated to cooperate with investigations of complaints against them.

According to Majiza Philip and CRARR, this needs to change as it affords citizens no real justice against police who abuse their power, protecting the cops over the people they hurt.

At her trial she was represented pro-bono by criminal justice lawyer Arij Riahi, facing charges of assault, obstruction of justice, and resisting arrest. Prosecutors tried to argue that Philip had weak bones, making them more susceptible to breaking. Whether this is true or not is irrelevant, as Canadian law has long since recognized the “Thin Skull Rule” making a defendant liable for a victim’s injuries even if they’re especially severe due to a pre-existing yet stable condition.

The trial concluded last month with the judge throwing out all charges against her, finding Majiza’s testimony far more credible than that of the officers who mostly spent the trial scrambling to protect themselves with the one responsible for her broken arm conveniently suffering from concussion-induced amnesia. The police never even mentioned at trial that they broke her arm – a fact the judge found outrageous.

Majiza is now demanding that the new Ethics Commissioner reopen her case. With the Ethics Commissioner who handled her complaint now suspended, perhaps she now has a chance of getting justice.

Though the Commissioner has never reopened cases, Majiza can demand it in the face of new evidence. She knows that incidents like hers are more likely to be avoided with the introduction of body cameras on officers, as well mandatory ethnic diversity quotas on the police force. In addition, she calls on the government to change the law and make a police Ethics Commissioner who is truly independent of the people they are charged to investigate.

The Quebec government has two choices here.

They can confirm the stereotypes that Quebec is racist and hostile to ethnic and religious diversity, or they can give victims like Majiza Philip the justice they deserve.

The case of Joshua Boyle and his wife Caitlan Coleman is one where the questions are more important than the answers.

Just over five years ago, Boyle and Coleman were backpacking in Afghanistan when they were taken captive by the Haqqani, one of many Islamic extremist groups in the region. They were held for five years, during which Coleman was raped and forced to miscarry, Boyle was beaten, and one of their three children – all of whom were born in captivity – was beaten with sticks.

When they got back to Canada, Boyle and his wife were hailed as heroes. Their picture appeared in all the major news sources as the couple that survived being prisoners of Islamic militants. They got to visit with Prime Minister Trudeau and even now the photo of our leader bouncing Boyle’s youngest on his knee circulates online.

Unfortunately, the Boyle case is a perfect demonstration of how quick society is to make heroes of people without knowing all the facts. On January 3, 2018 Joshua Boyle, the same guy we all saw as a heroic survivor of militants was arrested on fifteen charges including assault, sexual assault, illegal confinement, uttering death threats, misleading police, and forcing someone to take a noxious substance. Boyle will be facing serious jail time if convicted of any one of these crimes.

Court orders prevent details like the identity and gender of his accusers for their own safety, which means it is difficult to form a hypothesis of what happened. However, with speculation based on what we do know about Boyle’s story, it is possible to construct an alternate narrative to the one the public has been fed entirely through Boyle’s own account of events in Afganistan and when the family returned home.

It’s one that posits that maybe Boyle wasn’t such a hero after all.

For your consideration…

What do we know about Joshua Boyle and Caitlan Coleman?

Joshua Boyle is thirty-four years old and he is Canadian from New Brunswick. Caitlan Coleman is American from Pennsylvania. The rest of what we know is mostly what Boyle has been telling the press on the couple’s behalf. That said, there are a lot of questions Boyle and Coleman need to answer.

Why were they backpacking in the most dangerous parts of Afghanistan so soon after the war?

Boyle claims that their goal was purely humanitarian. They wanted to help those villagers in areas of Afghanistan where no aid worker would dare to go.

However, the circumstances under which they attempted to help people make their alleged goal questionable at best. Though they were aware that the area they were traveling in was dangerous, they made no secret of their destination, making them easy pickings for anyone with malicious intent.

This is not to suggest that they intended to be taken captive by militants, but they certainly did nothing to prevent it.

Why did Coleman agree to accompany her husband on this trip?

Caitlin Coleman was five months pregnant when captured and the area of Afghanistan they were traveling in is not known for its enlightened attitudes towards women. Though one would think her safety and that of her unborn child would be top priorities, she put herself and her baby at risk by accompanying her husband into hell.

Why has no one spoken directly to Caitlin Coleman about what happened to her and her husband in Afghanistan?

Most of what we have heard about their family’s ordeal has come from the lips of Joshua Boyle. Though Caitlin Coleman endured the worst torments during their captivity – forced miscarriage, sexual assault, and being forced to witness the abuse of her child – her husband is still speaking for her.

Coleman’s story is just as important as that of Boyle’s and her experience is unique as the only adult woman in this saga. When she was speaking to Maclean’s a few weeks before her husband’s arrest, Joshua Boyle refused to leave the room, as though he were controlling Coleman with his presence.

Why no one has speculated if she has been victimized by her husband is odd given how little she has been allowed to say publicly. Her behavior goes beyond that of a demure religious woman and is more indicative of someone living in fear and possibly suffering from mental health issues.

Why did Joshua Boyle provoke his captors?

According to Boyle, he was regularly pressured to join his captors in their cause. Instead, he, a practicing Muslim, woke up early and prayed loudly, waking his captors up and effectively accusing them of being bad Muslims. He regularly called them “munafiq” or hypocrites and annoyed his captors so much they raped his wife to punish him.

Anyone with a lick of sense knows you do not provoke your kidnappers, and that Islamic militants are notorious for mistreating female captives. Boyle’s actions indicate either extreme stupidity, insanity, or a selfish disregard for the safety of himself and his wife.

Though Joshua Boyle’s behavior did not merit the brutality with which he and his family were treated, anyone held captive by people known for their brutality would tread VERY carefully in their presence.

The case of Joshua Boyle and Caitlin Coleman is an ongoing one. As more facts come to light, public sympathy for Boyle wanes. He seems increasingly like a manipulative attention-seeker who would do society good in an environment where he could no longer hurt people.

As his star falls, we begin to see the real victims: Caitlin Coleman and her children.

New Year’s Eve is coming and with it, parties, booze, and tragedies caused by idiots who cannot accept that they are too drunk to drive and jerks who willfully ignore the rules of consent. For those of you planning to party on New Year’s Eve, I’ve provided a short but concise list of legal tips to help start the year off without anybody getting hurt.

If you are drunk, do not drive.

This should go without saying as it’s not only the law, it’s common sense. If you’re caught for drunk driving and are lucky you’ll just get a fine and the suspension of your driver’s license. If unlucky, drunk driving charges can result in a jail term ranging from four months to life in prison.

When in doubt, don’t do it.

The legal definition of drunk has nothing to do with how you feel. It is an arbitrary standard: if you have more than eighty milligrams of alcohol in your system for every hundred milliliters of blood, you are considered above the legal limit.

You may feel perfectly fine and sober but that does not matter if a breathalyzer indicates that you are above this limit. The golden rule to follow on New Year’s Eve or any other time is: when in doubt, don’t drive. Sleep over, get a lift, or call a cab or Operation Nez Rouge to get home safe.

You’ll save lives, including your own.

Drunken consent is not legally consent.

Rapes happen all the time, and in environments where booze is free flowing, there is always that scum bag who says the victim agreed to sex even though said victim was very drunk at the time of the attack. If a person is drunk they are in no shape to consent to sexual activity. They are incapable of consenting to sexual activity because their ability to freely give consent was affected by the alcohol. If a person is in no shape to drive, they are in no condition to agree to sex with you, so do the noble, legal thing and don’t have sex with them.

If a person is unconscious, they cannot consent.

The inevitable result of too much drinking and partying is often a loss of consciousness. If a person is passed out, this is not an invitation to touch, grope, or spoon with them. If a person is too drunk to say “no” to whatever it is you want to do with them, they are also too drunk to say “yes”.

Their passivity does not equal consent. The legal definition of sexual assault is sexual touching without consent, so if a person is unconscious, keep your hands to yourself.

When in doubt, check in.

A lot of people find the idea of double-checking for consent an unsexy mood-killer. You know what’s really unsexy? Sexual assault and the ten or more years in prison you get if convicted.

When in doubt, check with the person you’re with to make sure they’re consenting freely to all of what you are doing together. Check often if you have to. It’s better than violating your partner and will keep you out of trouble.

Remember that fireworks are dangerous and cities usually have rules about where you can set them off.

New Year’s Eve can be a blast and to celebrate you may want to set off some fireworks. Do your homework first.

Fireworks are extremely dangerous and every New Year’s Day the news is filled with horror stories of people who blew their fingers off and burned their houses down. Remember that at the end of the day, fireworks are basically just explosives and are just as dangerous.

Read the instructions on the package, do not use them when drunk and be sure use them far from buildings and facing away from people. You should also call the city or check out your municipal website to make sure there are no bylaws in place forbidding the use of fireworks within city limits.

In Montreal it is forbidden to use fireworks, bottle rockets, or other pyrotechnics without authorization from the city. Failure to obey the laws could result in hefty fines and if there is property damage or people get hurt, you could also be looking at jail time.

The perk of adulthood is that we can welcome the New Year the way it was meant to be welcome: with a glass of something boozy and a kiss at midnight. Unfortunately it’s also one of the most dangerous nights to be out celebrating.

Let’s start this year off right by making sure our world is a little safer.

On April 13, 2017 our parliament began its first reading of Bill C-45, The Cannabis Act. Recently this bill was passed in the House of Commons and has now been submitted to the Senate for debate and voting. If it passes in the upper house, the Governor General will provide their royal assent and Prime Minister Justin Trudeau will have successfully legalized cannabis in Canada.

Justin Trudeau made a lot of promises to get into office. He promised to fix unemployment for Canada’s young people, but chickened out, informing hoards of his voters after the election that they should get used to temporary employment with poor wages and non-existent benefits. He promised election reform, but cowardly backed out of that, undoubtedly realising that our problematic system worked in his favor.

All we have left to hope for from him is cannabis legalization. If the Prime Minister fails to do this, he’ll prove to his voters that he’s nothing but another corrupt politician with a pretty face.

The cannabis bill does what Trudeau promised: it legalizes cannabis. Unfortunately, the bill shows the haste in which the Liberals are desperate to fulfill at least one of their election promises. There are glaring holes in the law, which, if permitted to pass, will leave the courts and their discretion to fill them in.

The goal of the Cannabis Act is to provide legal access to cannabis and control and regulate its production, distribution, and sale. It has strict rules with criminal penalties for selling marijuana and accessories to minors, and like with tobacco products, also prohibits packaging, displays, and ads that would make it attractive to people under the age of 18.

It also sets up a licensing system, as well as one for federal inspections to make sure only those with permits are distributing and selling cannabis products, and sets up a system of fines and jail time for various violations. The Act also calls for the establishment of a cannabis tracking system, a sort of national registry of people legally authorized to “import, export, produce, package, label, send, deliver, transport, sell, and dispose of cannabis.”

Cannabis legalization is a good thing. Historically cannabis laws were used to persecute Mexicans and hippies and scientists have been reluctant to study marijuana’s health benefits due to the stigma and criminal charges connected with the plant. Legalization will facilitate more studies on its medical use for everything from chronic pain to post traumatic stress, as well as its effects on youth, aging and fetal development.

It should, however, be said that those who want access to marijuana will find a way to get it, and a black market for the drug will continue to flourish if illegal prices remain reasonable. The only way legal cannabis could reduce the black market for the drug is if legal prices for it remain competitive with those of illicit sources. One palliative care patient I spoke to was offered a prescription for medical cannabis products from her physician but was informed that it would cost her between two hundred and three hundred dollars a month for a product she could get for half that amount on the street.

The law tries to limit access to cannabis accessories such as bongs, pipes, and vapes, an attempt that is clearly impractical as most of these items can easily be used for tobacco products. Though the law indicates that enforcement will be left to a federal minister, it does not say which one will be put in charge. As cannabis is a topic in which health care, criminal justice, science and technology, environment, and international trade cross, any federal minister could be put in charge.

Perhaps the most glaring hole in the law is its failure to address those currently serving time, indicted, or on remand for marijuana related offenses that would be legal if the Cannabis Act passes. If the act passes, those charged with marijuana possession will find themselves facing or serving punishments for acts that are no longer against the law.

If the Cannabis Act fails to address this, Canada’s court system will find itself inundated with applications from people arguing that their punishments are unconstitutional. This will not only cost Canadian taxpayers millions in court costs, but also leave a very important clarification up to the discretion of federally appointed judges.

The Cannabis Act is rushed, and it’s incomplete. Though for once the Prime Minister’s heart is in the right place, his government should have taken the time to create as thorough a legalization bill as possible.

Our only hope is that the Senate recognizes this and sends the government back to drawing board to add the missing pieces of the law. If it does not, many people will have a very unhappy new year.

Quebec has a love-hate relationship with its Catholic heritage. The province began as a settlement ripped from First Nations by Catholic France before the British took the colony. Quebec owes its first schools, public records, and health care and social welfare facilities to the Catholic Church who set them up at time when secular governments stayed out of them.

During the Duplessis era from the mid 1940s to late 1950s, the Church cooperated with the near dictatorial government to try and keep the people of Quebec obedient and unquestioning of authority. The Quiet Revolution that followed emptied the churches as French Canadians embraced women’s liberation, free sex, and the right to question even the Pope.

Though the province now claims to be aggressively secular (see Bill 62), it is determined to hold on to Catholic symbols such as the crucifix in the National Assembly and the tacky cross currently adorning Mount Royal in the name of glorifying a heritage that credits Quebec society solely – and incorrectly – to its white, Catholic, French-speaking founders.

As any place with Catholic roots, Quebec is not immune to the scandals erupting from the sexual abuses of children carried out by priests, nuns, and friars working in the province’s many schools. At the end of November, The Quebec Court of Appeal approved a class action lawsuit by the victims of sexual abuse who are suing Montreal’s Saint Joseph’s Oratory and the Province Canadienne de la Congregation de Sainte-Croix for the molestation they endured while attending schools the defendants operated.

This article will look at how our legal system handles civil suits against religious authorities accused of participating in sexual abuse and the St Joseph’s case in a little more detail.

Courts in Canada are generally sympathetic to the young victims of sexual assault by Catholic clergy.

In 2004’s John Doe v. Bennett, the Supreme Court dismissed the appeal of the Roman Catholic Episcopal Corporation of St. George’s in Newfoundland who had been found liable for the sexual abuse of boys by a priest operating under their authority for two decades. Though provinces have their own civil laws, the principles of this case are similar to such civil suits in Quebec.

In John Doe, the Church invoked in its defense the same defense it uses whenever it is accused of complicity in abuse cases by people acting under their authority: they claim that the bad apples were independent and that the Church had no power to control their actions. This has been used to explain their refusal to apologize for their role in the sexual abuse and cultural genocide of the residential school system, and to try and escape any liability for the rape and molestation of children by their clergy in schools they ran.

It is a defense that is generally rejected by the courts in these cases.

In 2014, the Quebec Superior Court in Tremblay v. Lavoie was asked to determine the liability of Lavoie, the Rédemptoristes Congregation, and the Collège Saint-Alphonse (formerly the Séminaire of Saint Alphonse). Tremblay had instituted a class action lawsuit against the congregation for its role in the sexual abuse of himself and other students by Lavoie and other priests while they attended the boarding school run by the Rédemptoristes.

In order to determine liability of the religious organization in cases of sexual abuse of minors by priests, the courts generally look at the following factors:

The relationship between the religious hierarchy named in the case and its clergy

Whether the religious hierarchy was aware of the behavior of the people in question – “did they display willful blindness and gross negligence akin to bad faith”

If aware, did they fail to take the necessary measures to halt the sexual abuse and prevent further incidents or did they simply conceal its existence?

In the case of Tremblay, the court found the congregation, school, and Lavoie liable on all fronts and ordered them to pay the victims a hefty sum. According to the legal decision, not only did the Rédemptoristes know of the ongoing abuses but, as their priests could not work in the schools without the permission of their superior, they failed in their responsibility to ensure that those chosen to do so would not abuse their power.

The St Joseph’s Oratory case was not a case to determine the liability of the congregation or its pedophile priests. The case was an appeal of a technical decision required in all class action lawsuits. In order to institute a class action lawsuit in Quebec, you need the authorization of the courts and the appointment of someone to lead the suit on the plaintiffs’ behalf.

The group named J.J. -one of many victims of sexual abuse by the Catholic clergy in charge of schools attended by J.J. and the other plaintiffs – as the representative plaintiff in the suit. The Superior Court agreed with St. Joseph’s and Ste. Croix who protested the class action suit and J.J. as representative, with claims including J.J’s desire to remain anonymous, the lack of evidence, and the notion that the delay to file a class action has expired. J.J and the other plaintiffs appealed the decision and won.

In their decision allowing the class action lawsuit, the Quebec Court of Appeal pointed out the reason for J.J’s desire to remain anonymous – namely the stigma and shame associated with the abuse he endured. The only factors that would interfere with him representing his fellow victims include a conflict of interest, own interest in pursuing the suit, and conflicts with the other plaintiffs.

The court refused to address whether the delay to file suit has expired, claiming that this is a defense reserved for their lawsuit itself and not for the authorization hearing. They also mentioned that there is a lot of information and case law that support the claims in the suit and allow more latitude to the plaintiffs in civil sexual assault cases involving the clergy.

The Catholic Church has a lot to atone for from persecuting women, gays, and non-Catholics, to protecting those guilty of raping children. As society becomes more intolerant of the worst behaviors of people claiming to act in God’s name, they and other organized religions need to do what’s needed to weed out the offenders and hold them accountable to the people they hurt. If not, then they deserve to be sued and forgotten.

In a decision by the Quebec Court’s Youth Division last week, Judge Annie Savard awarded a mother full custody of her children. The kids, age 11 and 13, had been in foster care for ten years due to their birth mother’s inability keep a steady home and job, and her drug problems.

Now sober and reformed, the mother sought out her kids, only to find that they were being neglected and the foster home they were living in was filthy and vermin infested. Judge Savard agreed, and roasted Batshaw Youth and Family Centers, an organization established under Quebec’s Act Respecting Health Services and Social Services to oversee adoptions, child placements etc. for failing to fulfill their mandate where these two children were concerned.

This article is not about this decision. After years of living in squalor, the children and their mother have been through enough.

This is about youth protection in Quebec.

Youth protection is an issue where criminal laws and provincial civil and youth protection laws cross. Crimes that are committed against people under the age of 18 are punished more harshly than those affecting adults. Sentencing guidelines for young offenders as per the Youth Criminal Justice Act have, among others, the goal of instilling a sense of responsibility in youth.

For the purposes of this article, I am going to focus on cases where young people come to harm at the hands of their caregivers, the rights kids have, and the circumstances in which authorities intervene.

The main law in Quebec governing this matter is the Youth Protection Act (“the Act”). Its goal is to protect children – meaning anyone under the age of 18 – whose safety and development are at risk, and to supplement the Quebec Civil Code’s rules on adoption.

The authorities charged with enforcing it are the Director of Youth Protection or DPJ, the Commission des droits de la personne et des droits de la jeunesse established by the Charter of human rights and freedoms, and the Youth Division of Quebec Court.

Children’s rights as per the act include:

The right to receive an education from an educational body

Where the DPJ must intervene, the right to be treated with courtesy, fairness, and understanding in a way that respects their dignity and autonomy

During an intervention, the right to be provided with information and explanations in language appropriate to their age and level of understanding

In the DPJ’s interventions, the right to present their point of view and have their concerns heard

Where the child is placed with a foster family or rehabilitation center, the right to consult confidentially with his or her case worker

Unless the court decides otherwise, they also have the right to communicate confidentially with their parents and siblings

The right to have their identity kept confidential

Unless otherwise decided by a court of law, “the care, maintenance, and education” as well as ensuring the children are supervised lies with their parents.

Any interventions by the Director of Youth Protection have to be conducted in a way as to end and prevent the recurrence of any threats to a child’s safety and development. Said measures must also allow the child and parents to take an active role, where appropriate, in the decisions best for them. Any decisions made by the DPJ have to be made in the interests of the children and in respect for their rights, though they must also have the goal of ideally keeping the child within the family environment.

In cases where a child cannot be kept with their family and must be placed in an institution or foster care, measures must be taken so that the people important to the child, such as grandparents and extended family, can remain in contact. Even in cases where parents no longer care for their children, their involvement in their kids’ lives must be encouraged.

That said, let’s talk about how and when the DPJ can intervene.

The DPJ can inquire into any issue under their jurisdiction. They can and must intervene where the safety and development of the child is in danger. It is considered as such if the child “is abandoned, neglected, subjected to psychological ill-treatment or sexual or physical abuse, or if the child has serious behavioural disturbances”. A child is considered neglected if their basic needs are not met and the act explicitly states that ideological considerations such as notions of honour do not excuse abuse.

Anyone, especially professionals involved in child care, can refer a case to the DPJ. Pollyanna (name has been changed for privacy reasons), a retired social worker, described to me how the DPJ can intervene in cases referred to them from the public health care system.

Social workers at the CLSCs and hospitals will receive a file referred to them by a doctor or nurse detailing their reasons for suspecting a child is at risk. This can include signs of severe malnourishment, poor hygiene, physical abuse, unusual behavior from parents and children, and where files are referred to social workers from obstetrics, the age or behavior of the mom-to-be (i.e. she’s unusually young). It is then up to the social worker to decide whether or not to contact the Director of Youth Protection, but Pollyanna says she preferred to err on the side of caution and contact them anyway.

It is up to the Director of Youth Protection to investigate and decide whether or not to intervene. Pollyanna points out that like most public organizations in Quebec, the DPJ are understaffed and underfunded and therefore only intervene if there is sufficient evidence to support their involvement. In most cases, she said, they do nothing, though they do their due diligence and in emergencies will send someone immediately to deal with it.

Despite their best efforts, the system of youth protection in Quebec has room for improvement. Failure to acknowledge this and work to fix it will only lead to more cases of neglect and abuse.

Prime Minister Justin Trudeau was elected because of a lot of promises he made. He promised electoral reform and greater political transparency, but then backtracked and chickened out. He won the young vote by promising to improve employment opportunities, only to tell Canada’s youth less than a year into his term that they should get used to temporary employment with lousy pay and no benefits. There is, however, one promise our leader made that he actually seems to be following through on, and that is the legalization of marijuana in Canada.

As it stands, marijuana is still considered a controlled substance under the Controlled Drugs and Substances Act (CDSA) which works with the Canadian Criminal Code to control drug offenses. Drug offenses are usually lumped into two categories, possession related – which can result in up to six months in prison for a first offense, and supply related – which can result in at least of five years in jail less a day.

Trudeau’s plan is to legalize pot by July 2018 and he’s told the provinces to get ready. Though Quebec is pleading for more time to set up the necessary administrative bodies and laws to control the sale and distribution of legal marijuana, they recently tabled a bill to get the ball rolling.

The law in question is Bill 157, An Act to constitute the Société québécoise du cannabis to enact the Cannabis Regulation Act and to amend various highway safety-related provisions.

As indicated by the law’s title, the organization that will control the sale and distribution of legal cannabis in Quebec will be the Société québécoise du cannabis, which will be a subsidiary of the Societé des Alcools. Its mission is carefully worded as “to ensure the sale of cannabis from a health protection perspective” and keep consumers buying it legally “without encouraging cannabis consumption”, language undoubtedly chosen to alleviate the worst fears of those opposing legalization.

In order to carry out its functions, the Société québécoise du cannabis will be able to buy cannabis for commercial purposes from a producer that meets certain government standards. It will also be able to operate cannabis retail outlets, sell it online, and authorize people to transport, deliver, and store the cannabis on the Societé’s behalf. It will also be able to set the price of what they sell. Employment by the Societé will be conditional on their personal integrity and the obtainment of security clearance.

In addition to rules governing the Société québécoise du cannabis, the law contains the new Cannabis Regulations Act, which sets out specific rules regarding cannabis possession and consumption under legalization in order to “prevent and reduce cannabis harm”. To this end, minors will be prohibited from possessing pot or pot products, and those caught with five grams or less will be committing an offense subject to hundred dollar fine with larger fines for subsequent offenses.

Adults will be prohibited from having more than a hundred and fifty grams of pot, and anyone who breaks this rule will be looking at a fine ranging from two hundred and fifty dollars to seven hundred and fifty dollars. The new law also forbids cannabis products in schools at every level from preschool to adult ed with similar fines for violations.

Cannabis has to be stored in a safe place that cannot be accessed by minors. People will be allowed to have and cultivate up to three plants for personal use, but having more than said plants will result in a fine for a first offense, with the amount doubling for subsequent offenses.

The rules regarding the actual smoking of pot are similar to the restrictions imposed on tobacco smokers. You will not be able to smoke in any enclosed health or social services institutions, nor will you be able to smoke pot on the grounds of post secondary schools. Pot smoking is also prohibited in any enclosed spaces where childcare or activities for minors is provided, though there is an exception if activities are held in a private residence.

You cannot smoke pot in any enclosed spaces where “sports, recreational, judicial, cultural or artistic activities or conferences, conventions or other similar activities are held”. Marijuana smoking is also prohibited at parties that are by invitation only, the enclosed spaces of non-profit organizations, as well as the common areas of residential buildings containing more than two dwellings and workplaces.

This is just the tip of the iceberg, as the list of spaces where pot smoking is prohibited is quite long. The fines for breaking these rules will range from five hundred dollars to fifteen hundred for a first offense.

Despite the restrictions on pot smoking in enclosed spaces, the law does allow certain places to set up smoking rooms exclusively for the purpose of consuming cannabis on their grounds. These include facilities maintained by health and social services, common areas of seniors’ residences, and palliative care facilities.

It should be noted that Bill 157 is worthless until the federal government passes the promised cannabis legalization bill. Until it does and the provincial governments know for sure what’s in it, no law regarding the distribution and consumption of marijuana can be enacted.

That is why Quebec’s law has been tabled, meaning that it’s simply been taken into consideration, not passed. It is probable that when the federal government’s legalization bill is presented in Parliament, Bill 157 will have to be changed to accommodate any federal rules as the central government maintains control over criminal law.

Despite the whining of critics paranoid about children getting their hands on weed, Canada for the most part seems united on the subject of legalizing mostly harmless and widely used herb. Here’s hoping our governments do it right.

On November 9, 2017, the Quebec government passed Bill 144, An Act to Amend the Education Act and other legislative provisions concerning mainly free educational services and compulsory school attendance. The law, which comes into effect next summer, was enacted to tackle the ongoing problem of illegal schools and better regulate homeschooling in the province.

The trigger for this law is a lawsuit brought by Yohanen Lowen and his wife Shira. The two are former members of Tash, a Chasidic religious Jewish community in Boisbriand, Quebec. Lowen left his community over ten years ago and discovered that his education left him completely unprepared for life on the outside.

Though Lowen can speak Yiddish and read Aramaic, he did not know basic arithmetic, nor could he read and write English and French. He and his wife are suing the provincial government for failing in their legal obligation to ensure that they, like all other children in Quebec, receive a proper education.

The case is due to be heard next fall, with the Education Ministry and leading members of the Tash community named in the suit. It should be noted that while Lowen is unemployed and making up for lost time by working for his high school diploma, neither he nor his wife are seeking financial compensation. What they want is a declaratory judgment forcing the government to make people in religious communities teach their children the provincial curriculum.

The issues at play are threefold. First, there is parental discretion and the right of parents to choose the education that will best prepare their children to be functioning members of society.

There is also the issue of government supervision which prevents child abuse and deprivation by setting legal limits on said parental discretion. This why, for example, parents can be punished for starving their kids or beating them into comas.

The third issue is one of discrimination and religious freedom. Quebec is currently a hotbed of intolerance with laws like Bill 62 exacerbating existing prejudices and emboldening the most vile members of society into expressing their hatred openly. There are concerns that because Bill 144 was enacted primarily to tackle illegal Chasidic schools, religious Jewish communities will be the primary targets of the new law.

I had the privilege of speaking to a Modern Orthodox Jewish couple who both work as educators within Jewish schools approved by the province. Like many religious Jews, they keep Kosher, and the Sabbath, and codes of modesty, but unlike members of ultra religious communities like Tash, they do not avoid pop culture and modern technology.

The male half of the couple, a Rabbi, pointed out the difficulty with legislation like this as in Quebec most schools receive public funds, and that to receive it they have to conform to certain standards set by the province. He explained that religious communities like Tash believe they are providing their children with a proper education, but it is an education that will only serve them if they choose to remain within the community. The kids are taught with the assumption that they will never leave, and therefore are given no lessons that would allow them to thrive outside of it.

Yohanen Lowen would have been just fine had he chosen to remain in Tash. His decision to leave is what created problems regarding the education he got.

Both the couple and another Orthodox Jewish teacher I spoke to agree that certain subjects should be taught in all schools, particularly basic science, math, English, and French. They do, however, point out that some curriculum topics interfere with the most literal interpretations of religious texts.

Science, for example, conflicts with creationism. Moral education lessons that teach about other religions which would be perceived as fostering cultural sensitivity for the less religious would be perceived as making kids question their faith by these communities.

Sadly, Bill 144 does not contain anything requiring that a basic curriculum be taught to homeschooled kids, not directly anyway. What the law says is that parents who choose to homeschool must send written notice to the competent school board in their area and submit a “learning project” for approval.

It also requires that parents inform their kids of their rights under the Quebec Education Act, specifically those covered in articles 14 to 17 which cover the rights of children in receiving an education. This includes the right of all children to attend school from the age of 6 to the age of 16.

The new law requires that the government set standards for home schooled children and specify how the local school boards can monitor them. It allows inspectors designated by Education Minister to enter premises suspected of schooling kids illegally and collect information on the children and their parents. The law permits the Education Ministry official to access the health records of children to confirm their identities.

It is the last part of the law that homeschooling advocates like Noemi Berlus, president of Quebec’s homeschooling association, take issue with, feeling that it is a violation of privacy. Education Minister Sébastien Proulx claims that the law is in accordance with Quebec’s privacy rules.

It is the imposition of a standard curriculum that has religious Jews most concerned, as some have pointed out that such a law could force these illegal schools deeper underground by either not registering their children, or sending them to the United States where education is not as closely monitored.

As it stands, Bill 144 is vague, and it is perhaps that vagueness that gives reason to hope, as assessments by inspectors and school board officials could use their discretion to be more culturally sensitive. What must be remembered, however, is that vagueness can also pave the way for more intolerant interpretations.

If Quebec is truly committed to a message of tolerance, the law must be applied to everyone regardless of faith and care must be taken to make sure groups are not targeted unfairly.

On Tuesday, November 7, 2017, Muslim groups and civil liberty advocates launched the constitutional challenge we all knew was coming. Last week, I and many others predicted that Bill 62 would be headed straight for the courts on grounds that it violates the freedoms guaranteed in Canada’s constitution and Quebec’s Charter of Human Rights.

I’m not going to go over the details of Bill 62 as I did that last week. Instead, let’s talk about the legal challenge.

The plaintiffs in the constitutional challenge say in their court filing that:

“Such blatant and unjustified violations of freedom of religion, as well as of the quality guarantees of the Quebec and Canadian charters, have no place in Quebec or Canada,” and that this cannot be justified in a free and democratic society.

The plaintiffs include the National Council of Canadian Muslims, the Canadian Civil Liberties Association, and Warda Naili (formerly Marie-Michelle Lacoste), a convert to Islam who has chosen to wear the niqab as an expression of her faith.

The CBC spoke to some women who wear the niqab, something the Couillard government failed to do before passing Bill 62. For the most part they claim they have no issue showing their faces for identification and medical purposes, but that the law’s insistence that they show their faces regularly is not only humiliating them and forcing them to act in violation of their faith, but has also exacerbated the harassment they’ve experienced due to their beliefs.

The law, it seems, has sent the message to the most bigoted repulsive members of Quebec society that harassing a woman for how she dresses is perfectly ok. All you have to do is claim religious neutrality and secularism.

The motion filed in Superior Court on behalf of the aforementioned groups comes despite claims by Premier Philippe Couillard that Bill 62 was written to ensure its compliance with the Canadian and Quebec Charters. Quebec Justice Minister Stéphanie Vallée is also on the defensive, claiming the law only applies where uncovering one’s face is needed for communication, identification, or security. She’s said she believes the law will survive a constitutional challenge, though her confidence about this seems forced.

Other leaders in Quebec, including former Montreal Mayor Denis Coderre, newly elected mayor Valérie Plante, and the Quebec Association of municipalities have all come out against the law with one exception.

In a rare show of solidarity, Parti Québecois leader Jean-François Lisée has come out in support of the law, though he wanted even stricter secularist legislation. In spite of this, he too foresaw the constitutional challenge and has stated that a PQ government would use the Notwithstanding Clause to keep it in place should the courts strike it down.

The Notwithstanding Clause Lisée is so fond of is not the perfect fail safe the PQ leader makes it out to be. It is not a way for the Quebec government to flip the judiciary the legal bird should the constitutional challenge not go their way.

Section 33 aka The Notwithstanding Clause of the Canadian Charter of Rights and Freedoms says:

“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”

Sections 7 to 15 of the Canadian Charter of Rights and Freedoms deal specifically with legal rights such as the rights of people charged with criminal conduct, as well as equality rights such as that of equal protection before the law and freedom from discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The clause allows governments to keep legislation that violates these rights in place provided they expressly declare that the law will remain in effect notwithstanding the Canadian Charter of Rights and Freedoms…

…But there is a catch.

The Notwithstanding Clause also contains a rule stating that this declaration and the law it allows can only remain in effect for five years.

The delay was created so legislators could rework the law in question to make it conform to the Charter. The five-year delay is renewable, but even laws the most stubborn politicians take pride in are reworked after being struck down by the courts.

Bill 101 is a perfect example. The Supreme Court of Canada ruled it unconstitutional, so the Quebec Government invoked the Notwithstanding Clause. During that time, the law was tweaked so it conformed to the Canadian Charter of Rights, thus eliminating the need to renew the Notwithstanding Clause and preventing future legal challenges to it.

Lisée’s mention of the Notwithstanding Clause is an indirect admission that Bill 62 is unconstitutional and would not survive a legal challenge. Once the courts strike it down and all government appeals are exhausted, it is certainly within Couillard and any other elected provincial government’s power to use and renew Section 33, but the Canadian people’s embrace of their Charter rights would make it a highly unpopular move.

With the striking down of Bill 62 a certainty, the only question left is how much more hate Quebec governments want to push on us.

Four years after the Parti Québecois’ colossal defeat over their quietly racist but aggressively secular Charter of Values, and less than a year after a man entered a mosque in Ste Foy, Quebec and opened fire, the government we elected to spite them is bringing up a debate no one wanted to hear. Last week, the Quebec Liberals under Premier Philippe Couillard passed Bill 62, “An Act to foster adherence to State religious neutrality” and, in particular, to provide a framework for requests for accommodations or religious grounds in certain bodies.

It should be said right off the bat that this law is clearly a political ploy. The Couillard government is up for re-election in 2018. With scandal after scandal rocking his administration, he’s clearly given up on his base and is trying to attract the most secularist racist members of Quebec society who would otherwise vote for the Parti Quebecois.

It is also clear that it is meant to discriminate against non-Christians in Quebec. The law acknowledges Quebec’s history, but the decision to leave the cross up in the National Assembly means that their version of history leaves out the Jews, Muslims, and other groups that have made the province what it is today.

With all the talk about how this law will hurt people, we need to look at what it actually says.

The law applies to all employees of government departments, members of the Quebec public service, city employees with the exception of those governed by the Cree and Naskapi, public transit authorities, school boards, universities, and vocational colleges, peace officers, doctors, midwives, dentists, and anyone else appointed by the government. The employees of childcare centers and government-subsidized daycare centers are also subject to the new rules. Anyone seeking services from these bodies is also subject to the new law.

That means that contrary to the belief that the law will only affect public transport employees and people who work in government offices, teachers at all levels as well as doctors, dentists, and midwives will be subject to this law, as well as anyone who benefits from their help i.e. students, people who ride the bus or metro, and even people in need of medical care.

The law’s mantra is one of State religious neutrality, as the words “religious neutrality” are repeated constantly throughout its text. It requires that all employees subject to this law keep their faces uncovered in the execution of their duties. It also requires that anyone seeking services from employees bound by this law have their faces uncovered in order to receive them.

As only some Muslim women are required by their faith to keep their faces covered in public, the law is clearly written to prejudice them. However, as the law is pretty unclear. People with colds or flus who generously choose to cover their faces in public in order to avoid spreading illness could also find themselves denied services. The government is scheduled to put out a regulation clarifying certain aspects of the law in the near future.

Bill 62 does have some exceptions written into it. People who provide spiritual care and guidance in universities, vocational schools, and correctional facilities are exempt. Health professionals will not be barred from refusing to provide certain medical services that conflict with their spiritual beliefs. For everyone else, there is a process by which you can apply for accommodation on religious grounds, but it is a limited and complicated one.

Applications for accommodations must be based on the right to freedom from discrimination provision in the Quebec Charter of Human Rights and Freedoms. Requests for accommodation will be handled primarily by the justice minister, who has to decide the request on the following grounds:

“The request is serious”

The accommodation requested is consistent with notions of gender equality, specifically that between women and men

The request is “consistent with the principle of State religious neutrality”

The accommodation is “reasonable and does not place undue hardship” on the state and the person seeking it has already tried to find another solution

Where the law would force someone to be absent from work, additional criteria must be taken into account:

The frequency and duration of the absences on religious grounds

The size of the body the person works for and the “interchangeability” of its workforce – in other words, if the person can easily be replaced, they will likely not be accommodated

The consequences of the person’s absences

The possibility of a modified work schedule or use of bankable hours and vacation days

Fairness regarding other personnel in said government body

More rules apply where the law affects school attendance. The criteria in this case include how a refusal to accommodate will affect compulsory school attendance, the schools’ basic mission to impart knowledge “in keeping with the principle of equal opportunity” and the ability of the school to provide the educational services required by law.

The arguments in favor of Bill 62 are twofold.

Couillard has publicly said that he should be able to see a person’s face when dealing with them, a remark that is not only culturally insensitive, but also rules out any exchanges done by phone or email.

The other argument is one of benevolent sexism masquerading as feminism, specifically that the law will somehow save women from oppressive religious practices. This presumes that women who wear a niqab are doing so because someone coerced them to, or they simply don’t know better. It’s an argument that infantilizes the women by making the presumption that they are not mature enough to make their own decisions about how to publicly express their faith.

This law does not save anyone. It robs them of their sense of agency. If a woman can only leave her house with her face covered and she is welcome at government funded institutions as such, she may feel comfortable going to a public library and grabbing a book on feminism. She may also be comfortable going to a sports center to take a self-defense class.

The law clearly violates the Quebec Charter of Human Rights and Freedoms rules against religious discrimination and the freedom of religion and equality rights of the Canadian Charter of Rights and Freedoms. The moment this law comes into effect there is sure to be a constitutional challenge to it.

It is utterly disgusting that in 2017 we still need to have conversations about the unacceptability of sexual harassment and sexual assault. Though our laws guarantee equality of the sexes and freedom from discrimination, the fact that so many Canadians shared the hashtag #MeToo indicates that sexual harassment and assault are still very much a problem.

For those unfamiliar with the #MeToo movement, it started with reports that movie producer Harvey Weinstein sexually harassed and assaulted the women he worked with. The hashtag was used to show the magnitude of the problem of sexual harassment and assault, the idea being that if every victim shared it on their social media feed, society would finally understand how vast the problem is.

This article is a primer on sexual harassment and assault in Canada.

Sexual harassment is a form of harassment based on the person’s sex. According to the Quebec Institut National de Santé Publique, legally a victim must prove three things in order to prove sexual harassment:

“Unwanted sexual behaviour

That manifests itself repeatedly, and

That has adverse effects on its victims.”

The behavior can be anything from words to actions to posters, but for the victim it has to feel “targeted and unwelcome” with adverse effects. In Quebec the behavior has to be repetitive and harassment can manifest itself in being denied raises or promotions in retaliation for refusing sexual advances, or sexual behavior in the workplace that creates a hostile environment for the victim(s).

Legal recourse for victims of sexual harassment can consist of filing a complaint against your employer with the Commission des Normes de Travail (CNT), filing a civil liability suit against their harasser, or lodging a criminal harassment complaint which could get the offender up to ten years in jail. The employee could also, where applicable, file a complaint for psychological harassment with the Commission de la santé et de la sécurité au travail (CSST) and request compensation if the harassment is so severe he or she can no longer work.

Now let’s talk about sexual assault and consent.

Sexual assault is any application of force to another person that is sexual and without the other person’s consent.

Consent is the voluntary agreement to engage in sexual activity. It can be withdrawn at any time, and there is no consent where the victim was coerced, incapable of agreeing to the sexual activity due to their age or, for example, because they’re unconscious, or if someone agreed to the activity on their behalf.

There is also no consent if you abuse a position of power or trust, or of course, if the person expresses lack of consent. Passivity does not constitute consent.

Without consent, there is sexual assault. The penalty for sexual assault in Canada is a maximum penalty of five years, or if a weapon was used causing bodily harm, a maximum of ten years.

Myths

That said, we need to debunk a few myths:

MYTH: A woman’s behaviour or style of dress provokes sexual assault

The argument goes like this:

“If she’d been more modest (in dress or behavior) this never would have happened.”

No behavior or manner of dress excuses sexual assault.

Arguments about behavior and dress shift the blame from the assaulter to the victim, and reinforce toxic gender stereotypes against men and women by claiming that sexual assault is a woman’s problem, and that the reason assaults happen is because men are horny aggressive beasts who can’t control themselves and women provoke them.

Here’s a wakeup call: conservatively dressed people get assaulted, as do less conservatively dressed people. Quiet, modest people get assaulted, as do the bombastic and loud. Men get assaulted, as do women. To quote the Ontario Coalition of Rape Crisis Centers:

“Offenders are solely responsible for their own behaviour.”

MYTH: Sexual Assault is over reported

Less than ten percent of all sexual assaults are reported.

There is a huge stigma associated with reporting assaults, making harder on the victim than on the offender. This is likely because our culture still lacks a proper grasp of what constitutes consent. As a result victims are often interrogated and dragged through the mud about their behavior before and after the assault, rather than their attackers.

MYTH: It’s not Sexual Harassment if the victim does not complain about it

The unequal relationship that often exists between employees and their harasser will often lead to silence for fear of causing conflict that could jeopardize their job.

MYTH: Sexual Harassment and Sexual Assault are Women’s Problems

Men are often the victims of sexual harassment and assault, though it is likely that the available numbers about it are a modest estimate due to under-reporting.

The stigma associated with males reporting their victimization is likely because our society still adheres to notions of toxic masculinity. Toxic masculinity pushes a narrow and repressive notion of what it means to a man, specifically that any display of stereotypically feminine traits, such as emotional vulnerability or even being victimized makes you less of a man. According to a 2015 article in Psychology Today, the men most likely to be victims of sexual harassment were those who deviated from stereotypical notions of masculinity by being members of a sexual minority or being involved in feminist causes. Men who challenged traditional gender roles were also more likely to be victimized.

It should be said that even if sexual harassment and assault were strictly women’s problems, it does not lessen importance of fixing the problem. If we as a society recognize that women are fully human, a problem that affects only them must be recognized as a problem that hurts us all.

It should also be said that gender segregation is not a solution because it puts the onus of avoiding harassment and assault on the people who are victimized. This encourages and exacerbates a culture of victim blaming.

So what is the solution?

We need to teach people about consent as early as possible, that means teaching kids about the importance of personal physical boundaries and evils of sexism and unwanted touching. The lessons should be taught to all genders and not just to girls as they generally are now.

Schools should have a zero-tolerance policy about sexual harassment and assault and even something we used to think of as a common joke – snapping bra straps – should be recognized as a form of assault and punished accordingly. Our education ministries would be wise to consult experts on sexual harassment and assault to better develop these policies and education programs.

The rules in Quebec about sexual harassment need to change.

Under our current rules, isolated incidents of sexual harassment are not considered as such, and they should be, particularly if the actions or words of the offender are significant enough to make a work environment hostile for the victim. A boss who tells a female employee “fuck me or you’re fired” and does not pursue it further should be seen as just as much of a harasser as one who regularly makes sexist jokes around his or her coworkers.

Last but not least, we need to better screen judicial appointees and law enforcement to ensure that, for example, people like former superior court judge Robin Camp are NEVER allowed to decide a rape case.

Law enforcement needs to be better trained to treat the victims like victims so they’re not so scared to come forward. Anyone lacking proper knowledge and empathy to deal with issues of sexual violence should be made to undergo sensitivity training and pass an exam to secure their position. Those who fail should be denied employment.

Sexual harassment and sexual assault are problems that affect us all. There’s no avoiding it, and there’s no denying it.

One of the ways to persecute is to rob people of their history. This was done by male historians seeking to undervalue the contributions of women. It was done by white historians seeking to confirm racist ideologies.

Now a group of all white judges has entrenched the power of a body created by a white majority government to rob the victims of residential schools of their history. On October 6, 2017 the Supreme Court of Canada made it legal for the authorities in charge of compensating the victims of the residential school system to destroy the records of the abuse after a given delay.

Before we get into why the highest court in Canada came to this decision, we need to talk about residential schools.

Residential schools refer to a system of schools established by the Canadian government and run by Christian religious groups in an attempt to assimilate the Native population into Canadian society. They operated in Canada from the late 1860s to the 1990s. Despite remarks by such insensitive racist imbeciles as Senator Lynn Beyak, the schools were a nightmare for the children and their families, the effects of which are still felt to this day.

During this period, children were ripped from their parents and forced to live at these schools where they were beaten, tortured, and raped in an attempt to wipe out their language, culture, and history. Parents who refused to give up their children were threatened with starvation. Survivor Ronnie Otter’s parents were told their winter rations would be withheld if they didn’t send their kids away.

Many of the victims who went as children are still haunted by memories of being forced into oral and anal sex, scrubbed raw with rough brushes, and fed food more fit for livestock. Though they were promised good schooling, they were given a fifth grade education and trained to do manual labour such as agriculture, housework, and woodworking, not unlike in the Bantu education system of apartheid South Africa.

In 2008, the Canadian government under Stephen Harper issued a much needed formal apology to the victims and their families. In the apology the Canadian government formally recognized that:

“…this policy of assimilation was wrong, has caused great harm, and has no place in our country… ”

It should be noted however that while Canada’s Anglican, Presbyterian, and United Churches have apologized for their role in what happened to the eighty thousand survivors and their families, the Catholic Church has not. The Canadian Conference of Catholic Bishops claims that the independence of individual dioceses and their bishops absolves them of any responsibility. It is both ironic and unfortunate that the authorities of a religion so dependent on symbolism are incapable of providing even a symbolic show of remorse so desperately needed by people tortured in their name.

That said, let’s talk about how and why the Supreme Court came to their decision.

The records referred to in the Supreme Court’s decision are specifically those from the Independent Assessment Process (IAP) resulting from the 2006 Indian Residential Schools Settlement Agreement.

The Agreement was the result of a consensus reached between the legal representatives of survivors, the Churches involved, the Assembly of First Nations and other aboriginal organizations and the Government of Canada on how to address the legacy of residential schools. It was brought on by numerous class action lawsuits against the Canadian government by the victims of residential schools seeking compensation and recognition for the persecution they endured.

Among the things agreed upon was a Common Experience Payment for all eligible survivors of the residential schools, a form of financial compensation for the victims of abuse at the hands of the government and the Churches acting in its name. Eligibility was determined by the Independent Assessment Process which entailed survivors disclosing extremely sensitive information about the abuse they suffered and the consequences therein. The information also included medical reports, hearing transcripts, and reasons for decisions in each case, all of which are held by the Government of Canada. The overall goal was to determine the credibility of each claimant and the harm they suffered.

As per the Supreme Court’s ruling, these records can be destroyed after fifteen years, though individuals can apply to have the information in their files preserved. The Court decided on destruction of the records after a certain delay for a few reasons, the primary one being that of confidentiality.

The Supreme Court decided that all participants in the Independent Assessment Process agreed on destruction of the information as part of the high degree of confidentiality of the process, the same way one would for a contract. Confidentiality was agreed upon in part to allow the victims to retain ownership of their stories and the horror of what they endured while maintaining their privacy. It was also to ensure the participation of religious organizations that would not have done so otherwise despite their active participation in the abuse.

The Court also stated that the Truth and Reconciliation Commission established as part of the 2006 Indian Residential Schools Settlement Agreement was for “creating a complete historical record of the residential schools system, and promoting awareness and public education of Canadians about the residential schools system and its impacts”. The court said that those who participated in the IAP were welcome to share their experiences with the Truth and Reconciliation Commission and that the confidentiality rules ensured them that choice.

The decision appears to be based on preserving the dignity of Residential School survivors, but it has a flipside of destroying records of abuse that implicate the government and religious groups that should be held to account for what they did. Though a survivor may want to keep their experience confidential, that can change in fifteen or sixteen years whether or not they apply to preserve the records. At the end of the day, the only people this decision protects are the abusers and the people who allowed it by destroying the evidence.

This past Monday, after nearly three weeks of jury selection, the trial for Lac Mégantic began in Sherbrooke. Train engineer Thomas Harding, 56, railway traffic controller Richard Labrie, 59, and manager of train operations Jean Demaître, 53, all face forty seven counts of criminal negligence causing death. If found guilty, they will each face life in prison.

For those of you who don’t remember, here’s a recap of what happened on that fateful day in 2013.

On July 5, 2013 a Montreal, Maine & Atlantic Railway train carrying 7.7 million liters of petroleum crude oil arrived at Nantes, Quebec bound for Saint John, New Brunswick and the locomotive engineer parked the train. Another engineer was scheduled to take his place the next day.

The engineer contacted the rail traffic controller in Farnham, Quebec, and then the rail traffic controller in Bangor, Maine. To the latter, the engineer said the locomotive had been having mechanical difficulties throughout the trip, causing excessive amounts of black and white smoke. As they both believed the smoke would settle, they agreed to leave the train as is until the next morning.

Some time after the first engineer left, firefighters were called in to deal with a fire on the train. They shut off the locomotive’s fuel supply and the electrical breakers inside, as per railway instructions. Firefighters also met with a railway employee and track foreman who’d been sent to the scene, but neither had locomotive knowledge. They contacted the rail traffic controller in Farnham, and the train departed shortly afterward.

What happened next is rather technical unless you’re a mechanical engineer, so I’ll try to simplify it as much as possible.

Mechanical difficulties on the train got worse, affecting the brakes of the locomotive which are used to help regulate speed. At 1 am on July 6, 2013, the train headed downhill towards the town of Lac Mégantic. Without the locomotive effectively controlling its velocity, the train picked up speed. At 1:15 am the train derailed, spilling 6 million liters of crude oil and causing a large fire and multiple explosions.

Forty seven people died that night. Most were confirmed dead by the local coroner but some have not been found but are presumed dead, incinerated by the blasts. Two thousand people were evacuated from the site, forty buildings and fifty three vehicles were destroyed.

Aerial photographs of the site show over six blocks of scorched ground. The spill contaminated thirty-one hectares of land, and a hundred thousand litres of crude oil ended up in Mégantic lake and the Chaudière river via the town’s sewer systems, surface flow, and underground infiltration.

As with any disaster of this magnitude, heads must roll for it, figuratively, not literally. In this case, it is three former Montreal, Maine & Atlantic Railway employees who are on the chopping block, though not everyone agrees they are the ones who should be.

Some Lac Mégantic residents like Jean Paradis resent that the executives of the now bankrupt Montreal, Maine & Atlantic Railway are safely in the United States instead of answering to survivors in Quebec. Paradis was inside a bar when it happened and watched his friends die in the fire. He told Global News the rail company put making money above safety measures.

A train belonging to the now bankrupt Montreal, Maine & Atlantic Railway

“Security should be first, not third,” he said.

The Transportation and Safety Board of Canada (TSBC) seems to confirm the notion that the management of Montreal, Maine & Atlantic Railway are somewhat responsible for the disaster. Their report released in August 2014 following a lengthy investigation revealed many factors contributing to what happened which included:

Chemical engineer Jean-Paul Lacoursière of the University of Sherbrooke read the report and agrees that railway management should at the very least be called to testify at the trial. His impression is that the company did not make sure employees were properly trained, nor did they make sure they understood the training they received. He feels this lack of leadership, risk management, and ineffective training were all contributing factors to the disaster.

It is not the leadership of Montreal, Maine & Atlantic Railway or even the company itself that’s on trial. Superior Court Justice Gaétan Dumas’ instructions to the jury included a reminder that the railway company is not on trial, and that they must treat the defendants as if they were facing three separate trials for forty seven counts of negligence causing death.

The prosecution, led by Crown Prosecutor Valerie Beauchamp, plans to present thirty six witnesses. The trial is expected to go on until just before Christmas. The residents of Lac Mégantic, for the most part, just want to move on from what happened, equating the trial of Harding, Demaitre, and Labrie to holding generals responsible for losing a war.

As the town recovers, we must not forget who we lost in the disaster. Instead of speculating on the outcome of the ongoing trial, I’m going to conclude with a list of the victims below.

Let’s not focus on how they died, but remember them for who they were and how they lived.

Chelsea Manning is a former U.S. Army intelligence analyst. She leaked thousands of military and diplomatic documents to WikiLeaks about civilian deaths and the abuse of detainees by the Iraqi forces under American supervision during the Iraq War.

She was arrested back in 2010 when she was known as Bradley Manning. In 2013 she was convicted of six breaches of the Espionage Act, though she was acquitted of the charge of Aiding the Enemy.

For her crimes, Manning was sentenced to thirty-five years in prison. She served seven years before (now former) President Obama used his powers of presidential clemency to commute her sentence in 2016. Despite the commutation, when Chelsea Manning attempted to visit Canada this past Monday, she was denied entry.

At first glance, denying Manning entry into Canada feels absurd. Yes, she was convicted of a crime, but her sentenced was commuted.

That’s like a pardon, right? She should be allowed into Canada, right?

Unfortunately, it’s a lot more complicated than that.

The issue of whether or not convicted criminals are admissible to Canada is where the subjects of criminal and immigration law cross. For the purposes of this article, we’ll focus primarily on convicted criminals from the United States who attempt to enter Canada.

Fortunately, Chelsea Manning herself generously posted on Twitter a copy of the letter she was given upon being denied entry by Canadian border agents:

The letter says that she was denied because of paragraph 36(1)(b) of the Immigration and Refugee Protection Act, a federal law that defines admissibility and inadmissibility to Canada.

Article 36 of the law refers specifically to inadmissibility based on serious criminality. Some of the criteria under which someone would be considered inadmissible to Canada on grounds of serious criminality include:

Being convicted in Canada of a crime with a maximum jail term of ten years or

Being convicted of a crime outside of Canada that, if committed in Canada, would have resulted in a custodial sentence of at least ten years or

Being convicted of an indictable offense in Canada or

Being convicted of at least two indictable offenses not arising out of a single occurrence or

Being convicted of an offense that would have been considered an indictable one in Canada

Chelsea Manning was denied entry into Canada because as per the letter she received, her conviction made her inadmissible.

The crime she was convicted of – leaking classified government information under the American Espionage Act – has a Canadian equivalent: treason. Under the Canadian Criminal Code, the maximum penalty for treason is life imprisonment. As the rules state, if the crime you were convicted of abroad would carry a sentence of ten or more years in jail if you’d committed it in Canada, you’re inadmissible for entry into the country.

Canada and the United States generally do not recognize each other’s pardons.

An American pardon does not mean a conviction will be invisible to border agents. Though the information they find will likely indicate the pardon and might tell border agents that the person has rehabilitated themselves, it’s no guarantee they’ll get into Canada.

Chelsea Manning did not receive a pardon from Barack Obama, her sentence was commuted.

A pardon would mean her crime was forgiven and it would be as if she’d never committed it.

According to the US Department of Justice which handles requests for presidential clemency, a commutation of a sentence does not change the fact that a person was convicted of a crime, nor does it imply innocence, or remove any barriers a person would have as a result of their conviction.

All a commutation does is reduce the person’s sentence, either partially or completely. In the case of Chelsea Manning, she served seven years in prison instead of the thirty-five prescribed by her sentence.

Manning may be out of jail, but the other consequences of her criminal conviction remain.

That said, Chelsea Manning has promised to appeal the decision of Citizenship and Immigration Canada, but she will have a tough road ahead. Her crime is considered “serious criminality” under Canadian law, and according to the Immigration and Refugee Protection Act, there is no way to appeal a decision of inadmissibility on grounds of serious criminality.

According to Buzzfeed, a source close to Manning said she would appeal on the grounds that there is really no equivalence to the US Espionage Act in Canadian Law or the law of other countries besides the US.

There is, however, a way to pre-empt a potential refusal at the Canadian border for criminality reasons.

Citizenship and Immigration Canada has a process called “Criminal Rehabilitation” that allows foreign nationals with criminal convictions to apply for individual criminal rehabilitation allowing them to enter Canada. It should be noted, however, that even if Manning had filled out such an application, she would not currently be approved due to its selection criteria, which requires that at least five years have passed since the completion of her sentence.

Travel of any kind can be a nuisance, but it is doubly so if you come a long way only to realize you’re being barred from your destination due to a past criminal conviction. Annoying as they are, some argue that rules regarding criminality and admissibility to Canada are essential to national security. Others, like Canadian free speech attorney Jameel Jaffer, who spoke with The Intercept on the subject, feel there is no way Manning could possibly pose a threat to Canadian security.

Chelsea Manning is a hero to some and a traitor to others. The issue with her coming to Canada seemed not to do with her crimes, but with the fact that she was convicted. She may be able to come Canada some day, but for now it looks like she’ll have to wait five years.

The notion of pardons has made headlines recently with the Orange President’s pardoning of former Arizona Sheriff Joe Arpaio.

Arpaio is involved in a racial profiling in a case in which his patrols targeted and imprisoned Latinos in an attempt to crack down on illegal immigration. He was ordered to stop but Arpaio told his subordinates he planned to continue business as usual. He was convicted of contempt of court and facing six months in jail…

That is until the Orange Racist decided to pardon him on August 27, 2017.

This article is not about the fact that the US President, Arpaio, and the US Attorney General are clearly America’s senile, racist grandpas who should have been left in nursing homes ages ago…

It’s about pardons and will look at how pardons work in the US and Canada. For the American model, I’ll focus on the Presidential Pardon as that is the one the Orange President is most likely to abuse as the Russia scandal unfolds.

Record Suspension in Canada

In Canada, a pardon is formally called a “record suspension” and despite what many think, it does not wipe your slate clean of any crimes you were convicted of in the past.

A record suspension means that your criminal record will be kept separate from your other criminal records. That means it will be removed from the Canadian Police Information Centre (CPIC) database and won’t come up on a search. The purpose of this is to allow those convicted of a crime that have successfully rehabilitated themselves to reintegrate into society by opening up educational and employment opportunities they would not otherwise have access to.

Criminal record suspensions are governed by the Criminal Records Act. Though it only applies to records kept by federal organizations, most provincial and municipal criminal justice bodies will also restrict access to a federally suspended record once informed that a suspension has been ordered.

As per the Act, the Parole Board of Canada (“the Board”) has exclusive jurisdiction and “absolute discretion” to order, refuse or revoke a record suspension. Anyone convicted of an offense under Canadian law can apply to the Board for a record suspension, but there are a few catches.

First, you cannot apply for a record suspension until a certain time has elapsed after the expiration of your sentence. If your sentence was more than six months long or your fine greater than five thousand dollars, or if you were dismissed from the Canadian Forces – army, navy, or air force – and detained for a period of six months or had a punishment of over two years as per the scale of punishments set out in the National Defense Act, you must wait ten years before applying for a record suspension. If the offense was punishable on a summary conviction – a lesser type of penalty in which the maximum punishment is five thousand dollars or six months in prison – or is an offense other than those covered by rules for servicemen, you must wait five years before applying for a pardon.

It should be noted that there are some types of offenders who are ineligible for a record suspension regardless of how much time has elapsed since their conviction and sentence. People who have been convicted of sexual offenses towards minors as well as the trafficking of minors are usually ineligible for record suspensions. There is, however, an exception to this rule, and this where the Parole Board’s discretion comes in.

A person convicted of the above offenses can apply for a record suspension but will only get it if the Parole Board is convinced that the former offender was not in a position of authority towards the victim nor was the victim in a situation of dependency on the offender at the time of the offense. In addition, the Board must also be convinced that the offender did not use violence, coercion or intimidation against the victim. The offender also needs to be less than five years older than the victim.

It’s not just people who commit sex crimes against kids who cannot get a pardon in Canada. Any person convicted of more than three offenses prosecuted by indictment in which they were sentenced to two years or more in prison are also ineligible without exception.

If you successfully get a record suspended, it does not erase the conviction or the record of it. It simply sets it aside and can be revoked or cease to have effect if you’re convicted of a new crime, found to “no longer be of good conduct”, found to have lied, provided misleading information, or hidden info on your application, or if you weren’t eligible for a pardon when you applied. If you were convicted of a sex crime against minors but managed to get a record suspension under the Parole Board’s discretion, your file will still be flagged under the CPIC in the off chance that you try and volunteer or find a job working with a vulnerable group such as the elderly or children.

Pardons in the US

In the US, the Constitution grants the president the power to “Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. That means that he can pardon just about anyone for any criminal offense. As in Canada, the pardon can be used only for criminal offenses.

With a pardon, the president forgives the commission of the offense. According to the US Supreme Court, pardons can be issued at any time “after [the commission of an offense], either before legal proceedings are taken, or during their pendency, or after conviction and judgment”.

It is customary for the President to grant pardons based on the recommendations of the Department of Justice (DOJ), which is charged with reviewing applications for presidential clemency. Their standards for assessing applications are according to the applicant’s post-conviction conduct, character, and reputation, the seriousness of the offense and how recently it was committed, the offender’s acceptance of responsibility for the offense and sense of remorse and atonement, “the need for relief” and official reports and recommendations. It should be noted however that the president is under no obligation to follow the DOJ’s recommendations nor can the DOJ restrict the president’s power to pardon under the US constitution.

Sheriff Joe Arpaio

In order for a pardon to work, a warrant of pardon must be physically delivered to the person granted it. The recipient then can either accept it or reject it. If it is rejected, the courts cannot force the person to take it.

Unlike in Canada where the record is simply set aside, a presidential pardon has the effect of ending the punishment and “obliterates both conviction and guilt which places the offender in a position as if he or she had not committed the offense in the first place”.

Though presidential pardons appear absolute, there are many legal experts in the US challenging this because of Sheriff Arpaio.

Protect Democracy, an activist group fighting the President’s violations of legal norms recently sent a letter to the DOJ arguing that the pardon was granted in violation of its limits set out in the constitution. The group argues that the Constitution of 1787 is limited by later amendments including the Fourteenth Amendment guaranteeing equal protection before the law, and the Fifth Amendment guaranteeing due process.

In Arpaio’s case the Fifth Amendment comes into play because his actions leading to the conviction routinely violated Americans’ right to due process before the law and that in order to enforce this rule, the courts must be able to restrain government officials breaking them.

Whether the challenge succeeds or not remains to be seen, as there is no legal precedent for doing so.

As a rule, pardons do more good than bad. They allow people who made mistakes they’ve atoned for to move on and become productive members of society. As in anything, there is a danger when the power to pardon is absolute and vested in only one person, especially when that person is a senile, racist, whining misogynist.

It will be up to the American people and especially American jurists to recognize that what happens with Arpaio will be one more step in determining whether they are truly committed to democracy and rule of law or have resigned themselves to rule by an incompetent dictator.

In Quebec there is no law more hotly discussed, debated, or resented than Bill 101.

These days Bill 101 is seen one of two ways. People who love the Bill see it as necessary way to preserve Quebec’s Francophone identity in the face of cultural and linguistic assimilation attempts. Others see it as a means for Quebec’s French-speaking majority to treat the province’s other linguistic minorities like garbage.

The issue is a lot more complex than that and in order to properly explain, we need to go back in time.

The year was 1760 when Great Britain took over New France. British leaders replaced the French ones and did their best to impose their will on the French-speaking majority. This oppression went on for the next two hundred years during which there were Francophone rebellions to assert their rights but they were all quashed by the British. One of the few but significant concessions the British made to North American Francophones was allowing them to keep their Catholic faith despite the Crown’s dislike of the Papacy.

Everything began to change in the 1960s due in part to the Quiet Revolution in which every aspect of Quebec society from political patronage to the economy to social, cultural, and religious life came under scrutiny with the widespread recognition that change was needed. The increasing demand of Quebec Francophones for protections of their language and culture eventually led to the establishment of the the Royal Commission on Bilingualism and Biculturalism, a federal commission that took place from 1963 to 1971.

The Royal Commission revealed that the number of French-speaking people in Quebec was not reflected in their actual political and economic representation. In 1965 Francophones made an average of thirty-five percent less than Anglophones and there were concerns about the lack of Francophone representation in federal institutions.

The actual inequalities had a few effects.

First was the belief that the status of the French language in Canada was fragile, the second was the rise of Quebec nationalism which argues that the only way Quebec can preserve its language and culture is to separate from an English-speaking majority Canada.

Bill 101 was brought in to preserve the French language in Quebec, but it was not the first law to try and do so. In 1969 Bill 63, the Act to Promote the French Language in Quebec was enacted, which required that kids receiving an English education get a working knowledge of French and that the government facilitate immigrants learning French when they arrive in Quebec. The law was disliked by Quebec Francophones because it didn’t go far enough; it was eventually replaced by Bill 22 in 1974.

Bill 22 was enacted by the provincial Liberal government under Robert Bourassa. It established French as Quebec’s official language and required that all immigrants arriving in Quebec learn French.

In 1976 the Parti Québecois under René Levesque took power and a year later, Bill 101 was enacted.

Bill 101 aka the Charte de la langue française made French Quebec’s official language and enacted a lot of the rules still in force today. For the purposes of this article, I’m going to focus on the three sets of rules people seem to resent the most: the language of education, the language of commerce, and that of government services.

The law requires that kindergarten, elementary, and secondary school instruction be in French. There are exceptions to this and they work as follows:

If the father, mother (or both) is a Canadian citizen and received a major part of their elementary school instruction in English in Canada, one parent can request their child receive English instruction

If the father, mother (or both) as well as the child’s siblings are Canadian citizen and received or are receiving a major part of their elementary or secondary education in Canada in English, the child can go to English school

The law robs parents of the freedom of choice where their children’s education is concerned. It also allows the child to become a more employable adult, as French is the dominant language in Quebec and knowing more than one language improves job prospects overall.

Bill 101 also established French as the language of business. All product labels in Quebec are required to be drafted in French, as are all catalogues, brochures, and commercial directories. The law also requires that standardized contracts be in French, though both parties can agree to draft the contract in another language as well.

Perhaps the most hotly disputed aspect of Bill 101’s commerce rules is regarding signage laws. The law demands that all commercial signage, posters, and advertising be in French. Another language is permitted on commercial signage but only if “French is markedly predominant”.

Over the years these rules have often been used to persecute ethnic and religious businesses such as in 2001 when the Office québécois de la langue française – the office charged with making sure French is the language of commerce, work, and communication in Quebec – went after L. Berson & Fils, a now defunct Jewish funeral monument company in Montreal. Fortunately public outrage forced the government to back down.

In cases where the government proceeds with enforcing Bill 101, penalties range from fines of six hundred dollars and up to being disqualified from holding certain government jobs for a period of five years.

The most dangerous aspect of the law is regarding that of civil administration, specifically with regards to health and social services. Since they are government owned and operated under Canada’s public health care system, hospitals, CLSCs and clinics fall under the same French language requirements.

Though most people working in public health know to provide health and social services in the language to best serve the patient to the best of their abilities, some service providers have been accused of using language laws to refuse people necessary help. Hopital de Verdun, for example, has been accused on many occasions of denying English speakers health services because they cannot speak French.

Though it should go without saying, where a person’s health and safety are concerned, there should be no language barrier.

It should be noted that Bill 101 has been successfully challenged several times in the courts for violating the fundamental freedoms guaranteed by the Canadian Charter of Rights. To prevent further legal challenges, Quebec used the Notwithstanding Clause, a clause in our constitution that allows provinces to keep legislation in place notwithstanding the Charter. Since the court challenges, the law has been tweaked to make it more constitutionally compatible.

Bill 101 is like toothpaste. When applied correctly and in the right place it is a necessary evil to make sure that Quebec society functions despite what comes out of people’s mouths. When used incorrectly and in the wrong place it can be a pain in the ass. It’s up to us to keep challenging the government when they apply the Bill where it doesn’t belong.